Flowers v. Bitting

45 Ala. 448

• Court: Supreme Court of Alabama
• Decided: January 15, 1871
• Status: Published

Opinion

B. F. SAFFOLD, J.

The bill of exchange, the foundation of the suit, had the appellant’s name signed to it as drawer and indorser, by his mark in the usual way, but without an attesting '.witness.

The mark of a person who cannot write is not his signature, unless his name is written near it, and it is witnessed by a person who writes his own name as a witness. —Rev. Code, 1.

The bill above mentioned does not, therefore, purport to .be executed by the party sought to be charged. It rather purports not to be.

There was no evidence of a demand for payment, and notice given of the failure. These were necessary to fix the liability of the drawer or indorser. — Jordan v. Bell, 8 Port. 53 ; Rives v. Parmley, 18 Ala. 256,

The bill of exchange was the only evidence offered by the plaintiff. Upon this, the court charged the jury that, if they believed the evidence, they must find for the plaintiff. The charge was erroneous.

The defense that the consideration was a slave purchased is not available. — Mudd v. McElvaine, January Term, 1870.

A writing signed- as this bill was is not necessarily inadmissible as evidence, because of the imperfect signature. It may be received as an adminacle of documentary proof in an action. — Story on Rills of Exchange, § 53, note 6.

The judgment is reversed, and the cause remanded.